Lawsuits have recently been brought against county recorders by large title
companies and title plants in an effort to gain access to counties’ public
record databases without having to pay a fee for access and for free copies
of documents contained within the digital record. The lawsuits make various
claims, including the claim that limited access to online bulk records is a
violation of a state’s freedom of information acts.

One such lawsuit involves the Cook County, Illinois recorder and one of the
nation’s largest title insurers and operators of title plants. In April
2005, First American filed a lawsuit against the Cook County Recorder
Eugene “Gene” Moore accusing Moore and his office of violating the
Freedom of Information Act and for violating an Illinois county code that
stated a county could not charge for access to records if they were placed
online. The title insurance company claims in the suit that the recorder’s
action of blocking them from having free access to the bulk distribution of
land data records violates the company’s freedom of information rights.

In an exclusive interview with Source of Title, Ray Wolverton, the
Cook County Executive Assistant to the Chief Deputy, related what the title
plant claims the county has done and defended his office’s actions against
the bulk release of the public record without a fee to companies who plan on
reselling the very information they obtain without any cost to them. During
the interview, Wolverton expressed what caused the lawsuit while noting the
previous relationship that First American and other title companies and
plants, such as Chicago Title and Stewart Title, shared prior to the
enactment of Illinois legislation allowing recorders of deeds to charge for
the bulk distribution of information.

According to the indicated Illinois legislation, “any county may provide
Internet access to Public Records maintained in electronic form. This access
shall be provided at no charge to the public. Any county that provides
public Internet access to records maintained in electronic form may also
enter into a contractual arrangement for the dissemination of the same
electronic data in bulk or compiled form.” The code also states that “if,
but only if, a county provides free Internet access to Public Records
maintained in electronic form, the county may charge a fee for the
dissemination of the electronic data in bulk or compiled form, but the fee
may not exceed 110 percent of the actual cost, if any, of providing the
electronic data in bulk or compiled form.”

"We are allowed to provide Internet access to Public Records provided in
electronic form,” said Wolverton. “There will be no charge to the public. We
are able to enter into contractual arrangements for the dissemination of the
same information in bulk or compiled form, allowing us to charge up to 110
percent of the cost. If we are in a county exceeding three million, which we
are, the fees gathered will go into a recorder’s automation fund.”

These large title plants want the access to the information that we gather
for the public and they often demand that it is given to them for free or
next to nothing, added Wolverton. He believes that the title plants fail to
realize the cost associated with the funding, personnel and maintenance of
building the extensive record’s databases in the first place. While other
title plants pay to utilize the county’s records, First American expects
different treatment by demanding to have access to the records for free.

The judge in the case, Amy St. Eve, was quick to note that certain
claims made by First American were defunct, such as the idea that Cook
County’s actions violated the Illinois Freedom of Information Act.

“Basically, we are the point where the judge basically threw out, or
dismissed, the FOIA claims,” said Wolverton. “What remains to be seen is
whether or not we violated the county’s act, which I don’t believe we did
and that will be settled out probably in February.”